Citation Nr: 0010111
Decision Date: 04/14/00 Archive Date: 04/20/00
DOCKET NO. 98-16 853 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an evaluation in excess of 50 percent for
post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active service from January 1966 to November
1967. For service in the Republic of Vietnam, he was awarded
the Air Medal and the Purple Heart Medal with one Oak Leaf
Cluster, among others.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision of the
Portland, Oregon, Department of Veterans Affairs (VA)
Regional Office (RO) which denied an evaluation in excess of
50 percent for service-connected PTSD.
In its March 2000 submission of written argument, the
representative mischaracterized the issue on appeal as one of
entitlement to an evaluation in excess of 10 percent from
August 1994 and in excess of 50 percent from January 1996.
Therein, the representative argued that this appeal had been
continuously in effect since the initial August 1996 rating
action had allowed service connection for PTSD with a
10 percent evaluation from August 1994 and a 30 percent
evaluation from January 1996. An April 1997 rating action
granted an increased evaluation from 30 to 50 percent
effective back to January 1996. The veteran had pursued
increased evaluations all during this period.
However, in December 1997, the veteran submitted a statement
requesting that his current and pending appeal before the
Board be terminated. The only appellate issue pending at
that time was entitlement to an evaluation in excess of
50 percent for PTSD. While the RO had recently denied
entitlement to a total rating based upon individual
unemployability as an inextricably intertwined claim, the
veteran had never filed a separate notice of disagreement
with that issue. Additionally, less than two months later,
the veteran filed a new claim for an increased evaluation for
PTSD. Accordingly, the issue on appeal is entitlement to an
evaluation in excess of 50 percent for PTSD which was denied
in the most recent May 1998 rating action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been requested or obtained.
2. PTSD is manifested by reduced reliability and
productivity due to such symptoms as difficulty in
understanding complex commands, some impairment in memory,
disturbances of motivation and mood, and difficulty in
establishing and maintaining effective work and social
relationships; the evidence does not show circumstantial,
circumlocutory, or stereotype speech, panic attacks more than
once per week, impaired judgment, impaired abstract thinking,
obsessional rituals which interfere with routine activities,
speech intermittently illogical, obscure or irrelevant, near-
continuous panic or depression affecting the ability to
function independently, impaired impulse control, and spatial
disorientation.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 50 percent for
PTSD have not been met or closely approximated. 38 U.S.C.A.
§§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, 4.10, 4.130, Diagnostic Code 9411 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a), in that it is plausible. All of the
facts have been properly developed and no further assistance
is necessary to comply with the duty to assist. Id.
Law and Regulation: The 1945 Schedule for Rating
Disabilities (Schedule) will be used for evaluating the
degree of disability in claims for disability compensation.
The provisions of the rating schedule represent the average
impairment in earning capacity in civil occupations resulting
from those disabilities, as far as practicably can be
determined. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Any reasonable doubt regarding degree of disability will be
resolved in favor of the claimant. 38 C.F.R. § 4.3. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability more nearly approximates the criteria required for
that rating, otherwise the lower rating will be assigned.
38 C.F.R. § 4.7. The basis of disability evaluations is the
ability of the body as a whole, or the psyche, to function
under the ordinary conditions of daily life including
employment. 38 C.F.R. § 4.10.
New schedular criteria for evaluation of PTSD was made
effective in November 1996. The veteran's current claim was
filed in February 1998 and his appeal arises from a May 1998
rating action. Accordingly, only the new criteria may be
used to evaluate his claim. See Karnas v. Derwinski,
1 Vet. App. 308 (1991).
A 100 percent evaluation for PTSD is warranted for total
occupational and social impairment due to such symptoms as:
Gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily life
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own home. 38 C.F.R.
§ 4.130, Diagnostic Code 9411.
A 70 percent evaluation for PTSD is warranted for
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: Suicidal
ideation; obsessional rituals which interfere with routine
activities; speech which is intermittently illogical, obscure
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. Id.
A 50 percent evaluation is warranted for PTSD with
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: Flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. Id.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although rating specialists are directed to review the
recorded history of a disability to make a more accurate
evaluation, regulations do not give past medical reports
precedence over current findings. 38 C.F.R. § 4.2;
Francisco v. Brown, 7 Vet. App. 55 (1994).
Facts: Service medical and personnel records clearly reveal
that the veteran engaged in combat service in the Republic of
Vietnam. As noted above, he was twice awarded the Purple
Heart Medal. Almost 27 years after service separation, the
veteran first filed a claim for service connection for PTSD.
A January 1995 VA social and industrial survey contained a
report of the veteran's symptoms which he attributed to PTSD
and the VA social worker opined that the veteran was
"slightly" impaired socially and vocationally from reported
symptoms. The veteran was provided a VA psychiatric
examination in January 1995. He provided a detailed history
of combat service and of his symptoms. He related having
flashbacks, nightmares, increased startle response, avoidance
of crowds, difficulties with sleep and with anger, and
difficulties in interacting with people. The VA psychiatrist
concluded that he did not feel that the veteran's nightmares
or flashbacks significantly impaired his social or
occupational functioning. The VA doctor stated that the
veteran had symptoms which were consistent with depression,
including decreased energy, suicidal ideation, decreased
concentration and anhedonia; the diagnosis was dysthymia.
Based upon this evidence, the RO denied the veteran's initial
claim for service connection for PTSD in a July 1995 rating
action and the veteran appealed. On appeal, the veteran
submitted various lay statements from family, friends and a
former military supervisor in support of his claim.
In February 1996, a private psychologist wrote that he had
seen the veteran for treatment and his diagnosis was
post-traumatic stress disorder. In support of this
diagnosis, this private psychologist reported that the
veteran had told him of his symptoms. Severity of
nightmares, intrusive recollections and employment impairment
was described consistently as "moderate." This psychologist
also assigned a Global Assessment of Functioning (GAF) of 55.
Based upon this evidence, in an August 1996 rating action,
the RO granted service connection for PTSD with a 10 percent
evaluation effective from August 1994 and with a 30 percent
evaluation effective thereafter from January 1996.
In October 1996, the veteran was provided a VA psychological
examination. The veteran was living with his second wife of
eight years and currently employed as a carpenter. He
recounted his service combat history and wounds and noted
that he missed no more than one week of duty as a result of
being treated in field hospitals. Following service, he
attended skills training school and went on to work for a
life insurance company for nine years. He worked as a
salesman and a sales manager. In 1980, he was divorced from
his first wife and gained custody of his son while his
daughter lived with his ex-wife. He desired a change in
lifestyle and left his employment with the insurance company
and moved to another State to live with his parents and
worked at odd jobs until he found employment with county
government as a driver and laborer for another five years.
Thereafter, he had many jobs. The veteran reported having
chronic nightmares. Mental status examination revealed the
veteran was cooperative, well oriented, and had adequate
remote memory aside from some PTSD-related amnesia of certain
events that occurred in service. The veteran said he had
frequent suicidal and homicidal thoughts but he had never
made an attempt and had no intention of acting on these
thoughts. There was a dysphoric mood, and a restricted
affect, but speech was clear and coherent and goal-directed
and there was a possibility of some short-term memory
deficit. The veteran had difficulty falling and staying
asleep, difficulty concentrating, hypervigilance, an
exaggerated startle response and problems getting along with
others. This physician opined that the veteran's social
impairment was severe but that his occupational impairment
was at least moderate. The diagnosis was PTSD and the GAF
was 50.
An associated social and industrial survey of September 1996
completed by a VA social worker noted that the veteran felt
his closest friend was his current wife and that he also saw
his brother an average of one time per week. He said he
attended a "Pointman" ministries group and also attended
church, but he did not regularly associate with people
outside these meetings. The veteran reported that he did a
lot of household projects including remodeling and that he
bought, restored and sold antique cars. He said he had
difficulty spending time alone and preferred to be with
others and that he generally needed to be busy.
In January 1997, the VA psychologist who performed the
October 1996 psychological evaluation issued an addendum to
his previous report apparently to address the veteran's
behavior in terms of the newly adopted Diagnostic and
Statistical Manual of Mental Disorders, 4th ed. (DSM-IV).
This addendum contained no significant new information.
As a result of the most recent VA examination, the veteran's
evaluation for PTSD was increased from 30 to 50 percent by
the RO in an April 1997 rating action made effective back to
January 1996. The veteran thereafter submitted evidence of
his employment history including a listing of a significant
number of jobs held from the time of service separation until
present. Also submitted were several statements from
putative employers, one of which found that the veteran was
ineligible for the position offered and two of which simply
informed the veteran that he had not been selected for the
available position. In August 1997, the veteran submitted a
letter from his current spouse who offered her opinion on the
severity of the veteran's PTSD. She stated that he was a
hard-working, responsible person "in a lot of ways. He
doesn't let much time go by on unemployment before he is back
at another job." This letter also noted that the veteran had
various difficulties attaining and maintaining employment
because of his attitudes.
More recent evidence on file regarding the veteran's
employment showed that he worked as a laborer for a short
period in 1996 but that the employment was terminated for
"lack of work." A welding job he held in 1996 was terminated
because he quit. Construction work which he performed in
1996 and 1997 was apparently terminated for "lack of work."
In April 1998, the veteran was provided another VA
psychological evaluation. He argued that he was unable to
hold a job and said he had an increase in nightmares and
suicidal thinking. He was seeing a private psychologist
twice per month and participated weekly in a veterans' group.
He had seen another clinician for the possible use of
antidepressants but had negative reactions to each one tried,
so he did not use medication. He said he had been unemployed
for approximately six months but he was currently working on
a temporary appointment as a maintenance worker. It appeared
that he had some difficulty containing anger at work although
he stated the he had been doing "pretty good." There were no
legal issues and no substance abuse. He was dressed
appropriately, motor behavior and speech were unremarkable,
he was cooperative and friendly and his mood and affect were
depressed. Thought processes were logical and goal-directed
and he denied hallucinations and delusions. There was
"occasional" suicidal ideation but no clear plan and he said
this was not an answer for him. At each point of recall, the
veteran was able to remember 3 of 4 words, but he appeared to
have some problems focusing and his concentration appeared to
wax and wane. The veteran continued to report recurrent
intrusive thoughts, recurrent distressing nightmares,
flashbacks, and avoided things that reminded him of combat
service. He had difficulty interacting with individuals
other than family and with authority figures. Sleep was
often interrupted. This VA psychologist wrote that although
the veteran did not enjoy working, did not have a steady job,
and had some negative feedback from previous jobs, she did
not conclude that the veteran was incapable of working or
even that it would be good for the veteran not to have work.
She recommended counseling that was more job specific for the
veteran. She also concluded that she believed the veteran
was suffering from a major depressive episode which while
primarily related to PTSD was also somewhat related to
current life situations and other nonservice-related
stressors. The diagnosis was PTSD, rule out major depressive
disorder, and the GAF was 51-60.
Finally, the veteran's private psychologist wrote that the
veteran's PTSD symptoms had increased from January 1996
forward. He said the veteran's original GAF in 1996 was 61
and at present was 51. This psychologist also stated that
while the veteran reported improved communication with his
spouse and a greater understanding of PTSD symptoms, he was
still susceptible to sleep disturbance, intrusive thoughts,
depression, social isolation and difficulty handling anger.
Analysis: Initially, the Board notes that in his substantive
appeal, the veteran wrote that he was dissatisfied with the
conduct of the most recent April 1998 VA psychological
evaluation. He argued that the evaluation was brief, he felt
uncomfortable with the examiner, and felt that the ordeal was
a waste of time. Upon careful review of this examination
report, the Board can find no inadequacy whatsoever with
either the quantity or quality of the information provided
therein. It is clear that the VA psychologist provided the
veteran with an adequate opportunity to provide a significant
social history including his experiences during service and
over the years thereafter. The veteran was clearly provided
the opportunity to discuss and describe all symptoms related
to PTSD. As recorded in the substantive appeal, the "details
and history" of the veteran's psychiatric condition were
certainly provided in the April 1998 VA examination report
and there is nothing in the body of that report or in the
complaints provided in the substantive appeal which in any
way shows that examination or report to have been inadequate
in any particular. Simply being uncomfortable with a
particular VA health care provider or unsatisfied with the
outcome of any particular report is certainly not a basis for
the Board to remand for another VA examination.
A clear preponderance of the evidence on file is against an
evaluation in excess of 50 percent for the veteran's PTSD. A
careful review of the clinical evidence on file does show
that the veteran's PTSD symptoms have been fairly constant
over the past several years. In February 1996, the veteran's
private psychologist stated that symptoms were essentially
"moderate" and the veteran's GAF was 55. The October 1996 VA
psychological examination contained a GAF of 50. That report
found that social impairment was severe but occupational
impairment was at least moderate. The most recent April 1998
VA psychological examination listed a GAF of 51-60. In
October 1998, the veteran's private psychologist said that
the veteran's original GAF in 1996 was 61 (although his
February 1996 statement recorded it as 55) and that his
present GAF was 51.
In accordance with the descriptions of GAF scores contained
in the DSM-IV as incorporated into the Schedule at 38 C.F.R.
§ 4.125(a), a GAF of 50 represents serious symptoms and a GAF
of 60 represents moderate symptoms. Falling somewhere in
between these consistent scores, is clearly consistent with
the presently established 50 percent evaluation. The veteran
does show, consistent with the 50 percent schedular criteria,
occasional flattened affect, some impairment of short- and
long-term memory, difficulty understanding complex commands,
disturbances of motivation and mood, and difficulty in
establishing and maintaining effective work and social
relationships. However, the most recent clinical evidence on
file, consistent with earlier examinations, does not
demonstrate that the veteran manifests circumstantial,
circumlocutory, or stereotyped speech, or panic attacks, or
impaired judgment or abstract thinking which are included in
the criteria for a 50 percent evaluation.
The clinical evidence on file does not demonstrate the
criteria for a 70 percent evaluation including symptoms of
obsessional rituals interfering with routine activities,
speech which is intermittently illogical, obscure or
irrelevant, near continuous panic or depression affecting the
ability to function, spatial disorientation, neglect of
personal appearance and hygiene. While the veteran has
reported having occasional suicidal ideation, he has also
consistently stated that he would not act on such feelings
and no attempts or gestures are documented. There is noted
unprovoked irritability and difficulty in getting along with
persons socially and with employers but there is no impaired
impulse control resulting in any documented periods of
violence. Depression has been noted and found to be closely
associated with PTSD but some degree of depression is also
clearly related to nonservice-related factors including
events of daily life. There are no clinical findings
documenting panic attacks either near continuous or more than
once per week.
Finally, the Board notes that the veteran has principally
argued for an increased evaluation based upon his belief that
he is unable to work because of PTSD. However, neither the
clinical or other factual evidence on file supports this
argument. While the veteran has submitted clear evidence
showing that he has held many different jobs since service
separation (although there were apparent longer periods of
employment in his early years after service), this evidence
cuts two ways. While evidence of a multitude of different
jobs certainly demonstrates difficulty maintaining long-term,
steady employment, it also certainly demonstrates a certain
resiliency in the veteran's ability to obtain and adequately
perform many different types of employment. While the
veteran contends that his PTSD symptoms have resulted in his
inability to maintain long-term employment, the facts on file
show that the veteran has often chosen to change his types of
employments based upon personal choice. There is no
significant evidence showing that the veteran has actually
been fired or terminated from employment due to behavior
problems related to PTSD. Evidence regarding several of the
veteran's last short-term periods of employment note that he
left because of "lack of work" and because he quit.
It must be understood that the issue for consideration is
whether employment is precluded or significantly hindered by
service-connected disability, not whether the veteran has
difficulty in obtaining employment due to economic conditions
or lack of qualification therefor. In fact, the veteran's
detailed listing of employment from 1966 through 1997 does at
least partially demonstrate that the veteran has an ability
to perform many different types of employment requiring
various different skills. It is also noteworthy that no
treating or examining physician or other health care
professional has concluded that the veteran is unable to work
as a result of PTSD. To the contrary, the most recent April
1998 VA psychologist specifically concluded that she did not
feel that the veteran was incapable of working or even that
it would be good for him not to work.
Because the veteran's collective symptoms of PTSD most nearly
approximate those schedular criteria listed for a 50 percent
evaluation and because the clinical evidence does not
demonstrate or closely approximate any significant portion of
the schedular criteria for a 70 percent evaluation, an
evaluation in excess of 50 percent for service-connected PTSD
must be denied. The 50 percent evaluation presently assigned
most nearly approximates the clear preponderance of all
clinical evidence on file including the GAF scores
consistently assigned by various clinicians in describing the
veteran's social and occupational functioning.
ORDER
An evaluation in excess of 50 percent for PTSD is denied.
GARY L. GICK
Member, Board of Veterans' Appeals
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